Opinion
B203973
9-26-2008
THE PEOPLE, Plaintiff and Respondent, v. ANDRE R. DURHAM, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Andre R. Durham (defendant) appeals from the judgment entered after a jury convicted him of two counts of pandering by procuring, in violation of Penal Code section 266i, subdivision (a)(1). We affirm the judgment.
All further statutory references are to the Penal Code.
BACKGROUND
On July 14, 2007, at approximately 11:00 p.m., Los Angeles Police Officers Liz Soley and Nubia Avila were conducting an undercover pimping and prostitution operation near the Internet Café located on Sunset Boulevard in Hollywood. The Los Angeles Police Department had received complaints about pimps and prostitutes working out of the café. Officers Soley and Avila, both vice investigators with 10 years of experience, were dressed provocatively, to appear as prostitutes.
Officers Soley and Avila had been standing outside the café for approximately 10 minutes when defendant approached them and asked how long they had been there. Officer Avila replied, "Not long." Defendant then asked what the officers were doing, and whether they wanted to go to a party. Officer Soley said, "Maybe later." When defendant again inquired what the officers were doing, Officer Avila replied, "We are working." Defendant commented, "Yeah, I know, you dont have to tell me." Defendant asked the officers whether they worked on a freelance basis or whether they had a "man," street vernacular for a pimp. Officer Soley said they worked alone. Defendant said that he was not a pimp, but an "escort manager" who could arrange dates for them. He then invited the officers to accompany him to a more private area in the downstairs portion of the café where they could talk.
Once they were downstairs in the café, defendant asked the officers if they had a website with pictures of themselves. When Officer Avila said no, defendant said he could help them set up a website. Defendant asked how much money the officers usually made. Officer Avila responded, "It depends. We made most of our money stripping in Vegas." Defendant said he could get them a job that night at a strip club down the street.
Defendant then asked the officers if they usually worked "the track," street vernacular for an area known for prostitution. Officer Avila replied, "No, not usually, just every now and then." Defendant asked the officers how much money the officers made a night. When the officers responded that they made about $500 a night, defendant said he could get them $1,000 or $2,000 a night. Officer Soley asked defendant how much of the $1,000 they would have to give him, and defendant replied, "Whatever you would want to give me." When Officer Soley replied, "What if Im stingy and I dont want to give you anything?" defendant said, "Why you going to be like that?" Officer Avila said, "Because were the ones doing all the work." Defendant then explained that they would be working together to make money, and if they made $500 a night, he would take $100, and if they made $1,000 a night, he would take $200. Defendant further stated that he would manage all of their money, and that he would make sure the officers got money for food, clothes, and their trips to Las Vegas, so long as they did not talk to other pimps.
Defendant said he was not a pimp who would take their money and beat them, but that he was "more of a manager," and that they would work together like a family. He said that if the officers recruited other "bitches" to work for him, he would upgrade them to madams and give them a share of the money earned by their recruits. Defendant asked the officers if they wanted to make some money by working at the strip club that night, and the officers agreed, exited the café with him and began walking down the street. The officers signaled for a chase team, and uniformed officers arrived and arrested defendant.
Following a trial at which Officers Soley and Avila testified about their encounter and communications with defendant, the jury found defendant guilty of two counts of pandering. Defendant was sentenced to three years in state prison, calculated as the lower term of three years for each of the two counts, with the time imposed for count 2 to run concurrently with that imposed for count 1. Defendant was also sentenced to the midterm of two years for a Vehicle Code section 23110, subdivision (b) (throwing a substance at a vehicle, causing great bodily injury), probation violation, to run concurrently with the pandering convictions. Defendant filed the instant appeal.
On January 24, 2005, defendant pled guilty to a felony violation of Vehicle Code section 23110, subdivision (b). He received three years probation with the condition that he serve 60 days in the county jail and perform Cal Trans public works community service. On October 19, 2006, a probation violation warrant was issued for failure to comply with the community service requirement and for failure to appear. On January 30, 2007, defendant admitted violating probation, and probation was reinstated. Defendant violated the terms of his probation when he was arrested on July 14, 2007, for pandering.
DISCUSSION
I. Standard of Review
"`To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II. Sufficiency of the Evidence
Section 266i, subdivision (a)(1) provides in relevant part: "[A]ny person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in state prison for three, four, or six years: [¶]. . . Procures another person for the purpose of prostitution." The statute is intended to "`discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitutes operation, or increasing the supply of available prostitutes. [Citations.] [Citation.]" (People v. Jeffers (1987) 188 Cal.App.3d 840, 856.)
Defendant contends the evidence was insufficient to support his conviction under section 266i, subdivision (a)(1) because no underlying act of prostitution occurred and because the participation of undercover police officers made the offense factually impossible to complete. No actual act of prostitution need occur, however, for a completed offense of pandering. (Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 437 (Wooten) ["pimping and pandering do not require a completed act of prostitution"].) The statute requires only that the defendant, believing prostitution is to occur, procures another person for that purpose. (§ 266i, subd. (a)(1); People v. Hashimoto (1976) 54 Cal.App.3d 862, 866; People v. Osuna (1967) 251 Cal.App.2d 528, 531 [crime of pandering does not require actual acts of prostitution to take place].)
Defendant cites Wooten, supra, 93 Cal.App.4th 422 and People v. Freeman (1988) 46 Cal.3d 419 (Freeman) to support his position, but those cases are distinguishable. In Wooten, the defendants owned a strip club where patrons could watch female dancers perform sex acts with one another. The court held that because watching others have sex was not an "act of prostitution," the defendants could not be charged with the crimes of pandering or pimping. (Wooten, supra, at pp. 429-437.) The defendant in Freeman hired adult actors to perform lawful sex acts in a nonobscene motion picture produced and directed at a private residence. The Supreme Court reversed the conviction for pandering on the grounds that the filmmaker lacked the requisite mens rea or purpose to establish procurement for purposes of prostitution. (Freeman, supra, at pp. 424-425.) The court further held that prosecuting the filmmaker under section 266i for hiring actors to perform in a nonobscene motion picture "would impinge unconstitutionally upon First Amendment values." (Id. at p. 425.)
The instant case presents no similar issues. Here, defendant approached Officers Soley and Avila for the purpose of soliciting them to work for him as prostitutes. Defendant confirmed his belief that the officers were prostitutes by asking them whether they worked alone or with a pimp. Defendant then endeavored to have them to work for him, offering to get them jobs at a nearby strip club and to obtain "dates" for them. To induce the officers to accept his offer, defendant represented that together they could make between $1,000 and $ 2,000 per night with his share of the earnings being 20 percent, and that he would provide funds for food, clothes, and trips to Las Vegas. Officers Soley and Avila accepted defendants offer. There was thus substantial evidence that defendant procured the officers for the purpose of prostitution.
That the persons defendant procured for the purpose of prostitution were police officers with no intention of working for him does not alter the result. When a defendant bases a challenge to the evidence supporting his conviction on an assertion of factual impossibility — that the offense charged could not have been committed because of the involvement of undercover officers — our analysis is unchanged. The appellate court need not dwell on "`the niceties of distinction between physical and legal impossibility," but instead will "focus on the elements of the crime and the intent of the defendant." (People v. Rizo (2000) 22 Cal.4th 681, 684-685.) Section 266i focuses on the acts and intent of the perpetrator. (People v. Hashimoto, supra, 54 Cal.App.3d at p. 866 [pandering conviction valid despite assertion of factual impossibility because person solicited by defendant was an undercover officer with no intention of working for him].)
Substantial evidence supports defendants conviction.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.